sont come Judgments Et si le Parliament mesme erre Fincht's 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 l. 2. c. 1. f. 21. b. 22. a come il poet ceo ne poet estre reverse en ascun Lieu forsque en le Parliament Which because it is omitted as several other things are in the Book translated into English I will thus give it the Reader that does not understand French The Parliament hath Absolute Power in all Cases as to make Laws to adjudge Matters in Law to try men upon their Lives to reverse Errors in the King's Bench especially where there is any Common Mischief which the ordinary Course of the Law hath not any means to remedy in such Case this is the proper Court And all things which they do are as Judgments And if the Parliament it self errs as it may that cannot be reversed in any place but in Parliament CHAP. III. House of Lords THere certainly cannot in the whole World be seen a more Illustrious Court 2 Nalson 366. than this High and Honorable Assembly of Peers in Parliament nor any Thing of greater Benefit and Advantage to the Subjects of this Monarchy No Lord of Parliament can sit there Sir Simon d'Ewes Jour 11. Col. 1. till he be full One and twenty years unless by special Grace of the Prince and that very rarely unless they be near upon the Age of Twenty years at least A Bishop elect may sit in Parliament Ibid. as a Lord thereof If the King by his Writ calleth any Knight or Esquire to be a Lord of the Parliament 4 Inst 44. he cannot refuse to serve the King there in Communi illo Consilio for the Good of his Country It lies in the Favour of the Prince to make Heirs of Earldoms Members of the Vpper House Sir Simon d'Ewes Journal 〈◊〉 Col. 2. by Summoning them thither by Writ but then they take not their Place there as the Sons of Earls but according to the Antiquity of their Fathers Baronies The Arch-Bishop of Canterbury is the first Peer of the Realm Id. 140. Col. 1. The Earl-Marshals Place in Parliament is betwixt the Lord Chamberlain Id. 535. Col. 2. and the Lord Steward No man ought to sit in that High Court of Parliament 4 Inst 45. but he that hath Right to sit there If a Lord depart from Parliament without licence Id. 44. it is an Offence done out of the Parliament and is finable by the Law Any Lord of the Parliament Id. 12. by License of the King upon just Cause to be absent may make a Proxy 43 Eliz. 1601. Towns Coll. 135. Agreed by the Lords That the ancient Course of the House is Vide Sir Simon d'Ewes Journal 605. that the Excuses of such Lords as shou'd happen to be absent from the House upon reasonable Occasions ought to be done by some of the Peers and not by other Information All the Priviledges which do belong to those of the Commons House of Parliament Hakewell 82. à fortiori do appertain to all the Lords of the Vpper House for their Persons are not only free from Arrests during the Parliament but during their Lives nevertheless the original Cause is by reason they have Place and Voice in Parliament And this is manifest by express Authorities grounded upon excellent Reasons in the Books of Law A Proxy is no more than the constituting of some one or more by an absent Lord Sir Simon d'Ewes Journals 5. Col. 2. to give his Voice in the Vpper House when any difference of Opinion and Division of the House shall happen for otherwise if no such Division fall out it never cometh to be question'd or known to whom such Proxies are directed nor is there any the least use of them save only to shew prove and continue the Right which the Lords of the Vpper House have both to be Summon'd and to give their Voices in the same House either in their Persons or by their Proxies As many Proxies as any Peer hath Ibid. Col. 2. so many Voices he hath beside his own and if there be two or three Proxies constituted by one absent Lord as is frequent then alway the first named in the same is to give the Voice if he be present and if absent then the second sic de reliquis It is plain by the ancient Treatise Id. 6. Col. 1. Modus tenendi Parliamentum that if a Peer neither came to the Parliament nor sent a Proxy upon his Writ of Summons he forfeited 100 l. if an Earl 100 Marks if a Baron c. Towns Coll. 4.39 40 42. It seldom happeneth that any Bishop doth nominate fewer than three or two Proctors nor any Temporal Lord more than one John Arch-Bishop of Canterbury had this Parliament five Proxies Id. 34. 1 Eliz. 4 Inst 12 13. A Lord of Parliament by License obtained of the Queen to be absent made a Proxy to three Lords of Parliament one of which gave Consent to a Bill the other two said Not Content And it was by order of the Lords debated among the Judges and Civilians Attendants and conceiv'd by them that this was no Voice and the Opinion was affirmed by all the Lords That it was no Voice 2 Car. 1. 1626. Rush Coll. 269. The House of Peers made an Order That after this Session no Lord of this House shall be capable of receiving above two Proxies or more to be numbred in any Cause voted In the Lords House Arc. Parl. 12. Smith's Common-wealth 87. the Lords give their Voices from the Puisne Lord seriatìm by the Word Content or Not Content 4 Inst 34. First for himself and then severally for so many as he hath Letters and Proxies A Bill had three Readings in one Forenoon Towns Coll. 11. in the House of Lords Where a Committee of Lords is selected out to meet with another Committee of the House of Commons Towns Coll. 9. neither the Judges being but Assistants nor the Queens Council being but Attendants of and upon the House were ever nominated as Joynt-Committees with the Lords But when the Lords among themselves do appoint a Committee to consider of some ordinary Bill especially if it concern Matter of Law it hath been anciently used and may still without Prejudice to the Honour of the House that the King 's learned Council but especially the Judges may be nominated as Committees alone or as Joynt-Committees with the Lords January 19. 1597. 39 Eliz. It was resolved Towns Coll. 94. Sir Simon d'Ewes Jour That the Order and Usage of this House was and is that when any Bills or Messages are brought from the Lower House to be preferr'd to the Vpper House the Lord Keeper and the rest of the Lords are to rise from their Places and to go down to the Bar there to meet such as come from the Lower House and from them to receive in that Place their Messages
in Parliament are the King or Queen Sir Tho. Smith's Common-wealth 74. the Lords Temporal and Spiritual the Commons represented by the Knights and Burgesses of every Shire and Borough-Town These all or the greater Part of them and that with the Consent of the Prince for the time being must agree to the making of Laws The King of England Fortescue c. 36. p. 84. b. neither by himself or his Ministers imposeth Tallages or any other Burdens on his Subjects or alter their Laws or make new Laws without Assent of the whole Kingdom in Parliament No Parliament no Penny Turner's Case of Bankers 95. hath been always taken notice of as a principal Foundation of this Government even by our Neighbour Princes and States who have in all Ages made their Approaches upon this Realm and evermore valued us in Proportion to the Correspondency they observed between our Kings and their Parliaments For seeing the Power of every Prince is computed from his Treasure and Martial Men and those again by the Love of his People they well enough knew that as long as a good Understanding was maintain'd there our Princes could never want the Sinews either of the Purse or of valiant mens Arms. L'Assemblie de Troys Estates Finch's 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 lib. 2. c. 1. so 21. b. Cestascavoir Roy Nobility Commons qui font le Corps del Realm est appel un Parliament lour Decree un Act de Parliament Car sans touts troys come si soit fait per Roy Seigneurs mes rien parle del Commons nest Ascun Act de Parliament i.e. The Assembly of the three Estates to wit the King the Nobility and the Commons which make the Body of the Realm is called a Parliament and their Decree an Act of Parliament for without all three as if it be done by the King and Lords but speaks nothing of the Commons there is not any Act of Parliament The word Parliament is used in a double sense 1. English Liberties p. 78. Strictly as it includes the Legislative Power of England as when we say an Act of Parliament and in this Acceptation it necessarily includes the King the Lords and the Commons each of which have a Negative Voice in making Laws and without their Joint Consent no new Laws can pass that be obligatory to the Subject 2. Vulgarly the Word is used for the two Houses the Lords and Commons as when we say The King will call a Parliament his Majesty has dissolved his Parliament c. This Court consists of the King's Majesty 4 Inst 1. sitting there as in his Royal Politic Capacity and of the three Estates of the Realm viz. the Lords Spiritual Arch-Bishops and Bishops who sit there by Succession in respect of their Counties or Baronies parcel of their Bishopricks The Lords Temporal Dukes Marquesses Earls Viscounts and Barons who sit there by reason of their Dignities which they hold by Discent or Creation every one of which both Spiritual and Temporal ought to have a Writ of Summons ex debito Justitiae And the Commons of the Realm whereof there be Knights of Shires or Counties Citizens of Cities and Burgesses of Boroughs all which are respectively elected by the Shires or Counties Cities and Boroughs by force of the King 's Writ ex Debito Justitiae and none of them ought to be omitted and these represent all the Commons of the whole Realm and are trusted for them The King Id. 2. and these three Estates are the great Corporation or Body Politic of the Kingdom and do sit in two Houses the King and Lords in one House called The Lords House the Knights Citizens and Burgesses in another House called The House of Commons That which is done by this Consent Arc. Parl. 2. is called firm stable and sanctum and is taken for Law All the Judges of the Realm Towns Collect 5 6. Vid. Crompton 1. b. Barons of the Exchequer of the Coif the King 's Learned Councel and the Civilians Masters of the Chancery are called to give their Assistance and Attendance in the Upper House of Parliament but they have no Voices in Parliament 4 Inst 4. But are made sometimes joynt Committees with the Lords Every English-man is intended to be there present either in Person Arc. Parl. 3. Smyth's Common-wealth 74. or Procuration and Attorny of what Pre-eminence State Dignity or Quality soever he be from the Prince be it King or Queen to the lowest Person in England And the Consent of the Parliament is taken to be every man's Consent No man ought to sit in the High Court of Parliament 4 Inst 45. but he that hath Right to sit there for it is not only a personal Offence in him that sitteth there without Authority but a public Offence to the Court of Parliament and consequently to the whole Realm It is to be observed 4 Inst 2. That when there is best Appearance there is the best Success in Parliament At a Parliament 7 Hen. 5. of the Lords Spiritual and Temporal there appeared but Thirty and there was but one Act pass't of no great weight In 50 Ed. 3. all the Lords appeared in Person and not one by Proxy and so many excellent Things were done that it was called Bonum Parliamentum At the Return of the Writs the Parliament cannot begin Id. 6. but by the Royal Presence of the King either in Person or Representation The King's Person may be represented by Commission under the Great Seal to certain Lords in Parliament Id. 7. authorizing them to begin the Parliament or to prorogue it c. When a Parliament is call'd Id. 28. and doth sit and is dissolved without any Act of Parliament passed or Judgment given it is no Session of Parliament but a Convention It is an Observation proved by a great Number of Precedents Id. 32. that never any good Bill was preferred or good Motion made in Parliament whereof any Memorial was made in the Journal-Book or otherwise Tho' sometimes it succeeded not at the first yet it hath never dy'd but at one Time or other hath taken effect Matters of Parliament are not to be ruled by the Common-Law Id. 17. If Offences done in Parliament might have been punish'd elsewhere Ibid. Vid. 1 Inst §. 108. it shall be intended that at some Time it would have been put in Ure It doth not belong to the Judges to judge of any Law Custom Id. 50. or Priviledge of Parliament It is the just and constant Course of Parliament to bring the Party accused to his Answer yea Seld. Judic 95. tho' he fly Justice yet to send out Proclamation into the Countries that he appear at a Day or else such and such Judgments shall be given against him What is done by either House according to the Law and Usage of Parliament Sir R. Atkyns Argument c. 14. is properly and in the Judgment of the
Commencement could have been shewn During the British Saxon and Norman Governments the Freemen or Commons of England as now call'd and distinguish'd from the great Lords were pars essentialis constituens and essential and constituent Part of the Wittena Gemot Commune Concilium Baronagium Angliae or Parliament in those Ages It is apparent and past all Contradiction Id. 12. That the Commons in the Times of the Britons Saxons and Picts were an essential Part of the Legislative Power in making and ordaining Laws by which themselves and their Posterity were to be govern'd and that the Law was then the golden Metwand and Rule which measured out and allowed the Prerogative of the Prince and Liberty of the Subject and when obstructed or deny'd to either made the Kingdom deformed and leprous I may with good Reason and Warranty conclude Id. 125. that our Ancestors the Commons of England the Knights Gentlemen Freeholders Citizens and Burgesses of a great and mighty Nation were very far from being in former Times such Vassals and Slaves or so abject poor and inconsiderable as the absurd and malicious Ignorance and Falsities of late Writers have been pleased to make and represent them especially the Author of the Grand Freeholders Inquest and Mr. James Howel as if they were only Beasts of Carriage and Burthen ordain'd to be tax'd and talliated and have their Lives Estates and Liberties given away and disposed of without their own Assents The Book of the Clerk of the House of Commons is a Record 4 Inst 23. as it is affirmed by Act of Parliament 6 Hen. 8. c. 16. If the Commons do only Accuse by any way of Complaint whatsoever Selden's Judicature c. 14. and do not declare in Special against the Party accused then the Suit is the King 's and the Party is to be Arraigned or otherwise proceeded against by Commandment Ex parte Domini Regis In the Lower House sit the Speaker and the Knights Citizens Cromptona b. 4 Inst 1. Burgesses and Barons of the Cinque-Ports who represent the Body of the whole Commonalty of England All Persons and Commonalties St. 5 Rich. 2. c. 4. Rast 140. which shall be summon'd to Parliament shall come as has been used and accustom'd of ancient Time and he that shall not come having no reasonable Excuse shall be amerced and otherwise punish'd as of ancient Time has been used CHAP. VI. Power of the House of Commons THE House of Commons is a House of Information and Presentment Rush Coll. 217. Vol. 1. but not a House of Definitive Judgment 1 Car. 1. Rushw ib. 1625. Resolved That common Fame is a good Ground of Proceeding for this House either by Enquiry or Presenting the Complaint if the House find cause to the King or Lords 26 Jan. 28 Hen 6. Selden's Judicature p 29. Vid. id 38. The Commons required the Duke of Suffolk might be committed to Ward for that the General Fame went of him c. The Lords on Consultation with the Justices thought the same to be no good Cause of Commitment unless some special Matters were objected against him It is certain and not to be deny'd Petyt's Miscell Pref. c. p. 5. That in elder Time the People or Free-men had a great Share in the Publick Council or Government For Dion Cassius or Xiphiline out of him in the Life of Severus assures us Apud hos i.e. Britannos Populus magnâ ex Parte Principatum tenet It was not in the Power of all the Tenants in Capite in England Id. 47 48. tho' with the King's Consent to bind and oblige others or to make or alter a Law sine Assensu Communitatis Regni who had Votum consultivum decisivum an Act of Authority and Jurisdiction as well in assenting to Spiritual Laws as Temporal as may appear for an Instance in their Declaration or Protestation to Edward the Third in Parliament which concludes thus For they will not be obliged by any Statute or Ordinance made without their Assent Rush Coll. 690. A Member of Parliament may charge any great Officer of State with any particular Offence If any Lord of Parliament Spiritual or Temporal 4 Inst 24. have committed any Oppression Bribery Extortion or the like the House of Commons being the general Inquisitors of the Realm coming out of all Parts thereof may examine the same and if they find by the Vote of the House the Charge to be true then they transmit the same to the Lords with the Witnesses and the Proofs 1 Jac. 1. Petyt's Miscel Parl 64 1603. The Bishop of Bristol publishing a Book tending to make division and strife wrong and dishonour both to the lower House and the Lords themselves was complain'd of by the Commons to the Lords and he made his Recantation 1. That he had erred 2. That he was sorry for it 3. If it were to do again he would not do it 4. But protested it was done of Ignorance and not of Malice 7 Jac. 1. 1609. Vide Rush Hist Coll. 4 Car. Dr. Cowel writ a Book perniciously asserting certain Heads to the Destruction of Parliaments and the Fundamental Laws and Government of the Kingdom and was complained of by the Commons to the Lords who resolved to Censure his Errors and Boldness Ibid. And afterwards the Book was burnt by Proclamation Vide Dr. Manwaring's Case Rush Coll. Nalson Vide Petyt's Miscell Part. 74. Vide Dr. Montague's Case in Rushworth Nalson Petyt's Miscell Part. 82. 4 Junij 19 Jac. 1. Petyt's Miscell Parl. 120. The Commons House of Parliament this day adjudged Randolph Davenport Esq for his Offence in Mis-informing the House in a Cause wherein he was produced as a Witness to be committed Prisoner to the Tower for the space of one whole Month and then to be discharged paying his Fees 19 Jac. 1. Id. 160. Ordered by the Commons House of Parliament That the Serjeant at Arms attending this House shall attach the Body of John Churchill one of the Deputy-Registers of the Chancery and him shall take into his Custody and bring him to this House on Monday morning next at Eight of the Clock and the said Serjeant is in the mean time to keep him so as none be suffer'd to speak with him but in the hearing of the Serjeant Vide ad hoc Rush Collect. passim Vide Nalson's 2 Volumes Vide Selden's Judicature c. Vide Sir Robert Atkyns's Argument c. Vide Petyt's Preface to Miscell Parliamentaria Thomas Long gave the Mayor of Westbury four pounds to be elected Burgess 4 Inst 23. Vide Sir d'Ewes Jour 182. who thereupon was elected This Matter was examin'd and adjudged in the House of Commons secundùm Legem Consuetudinem Parliamenti and the Mayor fined and imprisoned and long removed for this corrupt Dealing was to poison the very Fountain it self Arthur Hall a Member of the House of Commons Ibid.
for the Borough By the Statute none ought to be chosen a Burgess of a Town Rush Coll. Vol. 1. 689. in which he doth not inhabit but the usage of Parliament is contrary But if Information be brought upon the said Statute against such a Burgess I think that the Statute is a good Warrant for us to give Judgment against him by Whitlock The King cannot grant a Charter of Exemption to any Man to be freed from Election of Knight 4 Inst 49. Citizen or Burgess of the Parliament A Person Outlawed in a Personal Cause may be a Burgess Towns Coll. 63 64. Vide John Smiths Ca. Sir Simon d'Ewes Jour 48. Col. 2. 480. Col. 1. Vide Sir Simon d'Ewes Jour 481. Col. 2. If Exception be taken to such an Election and an Outlawry alledged to disinable him the Stat. 23 Hen. 6. c. 15. will disinable most of this House for they ought to be Burgesses resident Tho' the Common Law doth disinable the Party Sir Simon d'Ewes Journal 482. Col. 1 yet the Priviledge of the House being urged that prevaileth over the Law A man Attainted Sir Simon d'Ewes Jour 482. Col. 1. Outlawed or Excommunicated or not lawfully elected if he be returned out of all doubt is a lawful Burgess A Knight Banneret 4 Inst 46. being no Lord of Parliament is eligible to be Knight Citizen or Burgess of the House of Commons being under the Degree of a Baron who is the lowest Degree of the Lord's House An Earl's Son may be a Member of the House of Commons Sir Simon d'Ewes Journal 244. Col. 2. One under the Age of One and twenty years is not eligible 4 Inst 47. Neither can any Lord of Parliament sit there till he be full One and and twenty years An Alien cannot be elected of the Parliament Ibid. because he is not the King's Liege Subject and so it is albeit he be made Denizon by Letters Patents c. But if an Alien be naturaliz'd by Parliament then he is eligible to this or any other Place of Judicature No Alien denizated ought to sit here Petyt 's Miscel Parl. 175. per Sir Edward Coke Resolved upon the Question Ibid. That the Election of Mr. Walter Steward being no natural born Subject is void and a Warrant to go for a new Writ None of the Judges of the Kings Bench or Common Pleas 4 Inst 47. or Barons of the Exchequer that have Judicial Places can be chosen Knight Citizen or Burgess of Parliament as it is now holden because they are Assistants in the Lord's House Yet read Parl Roll 31 H. 6. But any that have Judicial Places in other Courts Ecclesiastical or Civil being no Lords of Parliament Ibid. are eligible None of the Clergy Moor fo 783. n. 1083. 4 Inst 47. tho' he be of the lowest Order is eligible to be Knight Citizen or Burgess of Parliament because they are of another Body viz. of the Convocation The Clergy of the Convocation-House are no Part or Member of the Parliament Hakewel 59. Vide Fox's Book of Martyrs f 1639. A man Attainted of Treason or Felony 4 Inst 48. c. is not eligible For he ought to be magìs idoneus discretus sufficiens Mayors and Bayliffs of Towns Corporate are eligible 4 Inst 48. Vide contra Brook Abridg tit Parl. 7. At a Parliament holden 38 H. 8. it was admitted and accepted That if a Burgess of Parliament be made a Mayor of a Town Crompt 16. or have Judicial Jurisdiction or another is sick that these are Causes sufficient to choose others Any of the Profession of the Common Law 4 Inst 48. and which is in Practise of the same is eligible By special Order of the House of Commons the Attorny General is not eligible to be a Member of the House of Commons Ibid. Egerton Solicitor la Roign fuit command d'Attender en l'Vpper House Moor f. 551 n 741. Vide Sir S. d'Ewes Jour 441. Col 2 442. Col. 1. attend 3 Jours apres fuit eslie Burgess pur Reading Et fuit reteign quia il fuit primes attendant en l'Vpper Meson devant que il fuit eslie un Member de lower Meson Egerton the Queen's Solicitor was commanded to attend in the Vpper House and did attend three days afterward was chosen Burgess for Reading And he was retained because he was first attendant in the Vpper House before he was chosen a Member of the Lower House Onslow Solicitor esteant Burgess de lower Meson Moor f. 551 n 741. Vide Sir S. d'Ewes Jour 121. Col. 1 2. fuit command d'attend en upper Le lower Meson vient luy challenge demand d'aver luy fuit grant quia il fuit Member de lower Meson devant que il fuit command per Breve d'attend en le upper Onslow the Solicitor being a Burgess of the Lower House was commanded to attend in the Vpper The Lower House come and challenge him and demand to have him and it was granted because he was a Member of the Lower House before he was commanded by Writ to serve in the Vpper 18 Eliz. 1585. Sir Simon d'Ewes Jour 249. Col. 1. Concluded by the House That Mr. Serjeant Jeffreys being one of the Knights returned for Sussex may have Voice or give his Attendance in this House as a Member of the same notwithstanding his Attendance in the Upper House as one of the Queen's Serjeants for his Counsel there where he hath no Voice indeed nor is any Member of the same 23 Eliz. 1580. Id. 281. Col. 1. Popham Solicitor General upon demand made by the House was restored to them by the Lords because he was a Member of the House of Commons and they possessed of him before he was So licitor or had any Place of Attendance in the Vpper House No Sheriff shall be chosen for a Knight of Parliament Book of Extr. 411. Crompton 's Jur. 3. b. nor for a Burgess 1 Car. 1. 4 Inst 48. The Sheriff of the County of Buckingham was chosen Knight for the County of Norfolk and returned into the Chancery and had the Priviledge of Parliament allow'd to him by the Judgment of the whole House of Commons Vide de hoc Pro Con Sir Simon d'Ewes Journal 38 436 624 625. 1 Jac. 1. Sess 2. Scobel 96. Sir John Peyton Kt. returned the last Session and since chosen Sheriff Resolved upon the Question That he shall attend his Service here The personal Residence and Attendance of Sheriffs is required within their Bailywicks Rush Coll. Vol. 1. 684 685. during the Time of their Sheriffwick Mr. Walter Long being Sheriff of Wilts was after chosen Citizen for Bath and for that Offence was committed and fined viz. because he sate and served in Parliament Sir Andrew Noel Kt Towns Coll. 185. Vid. de hoc Sir Simon d'Ewes Jour 38. Col. 1 2.
Lex Parliamentaria OR A TREATISE OF THE LAW and CUSTOM OF THE PARLIAMENTS OF England By G. P. Esq With an APPENDIX of a Case in Parliament between Sir Francis Goodwyn and Sir John Fortescue for the Knights Place for the county of Bucks 1 Jac. 1. From an Original French Manuscript Translated into English 〈…〉 〈…〉 TO THE Most Supreme Court OF THE KINGDOM THE PARLIAMENT OF England The AUTHOR doth most humbly Dedicate this his small Treatise of the LAW and CUSTOM of PARLIAMENT THE PREFACE TO THE READER I Am very sensible that assoon as this Treatise is submitted to publick View 't will likewise meet with publick Censure and not a Few will be apt to start this Objection against it that it is only like an Old Piece in a New Dress These Things men will say have been done before the same Matter and much of the same Form are to be found in other Writers and this is but to obtrude upon the World 〈◊〉 vain Repetition of other mens Observations I must confess in part it is so and it must needs be so fo◠it is not to be expected that I shou'd presume to dictate Rules and Directions out of my own Fancy by which to govern or Influence Parliaments I must be beholding to Precedents and Records and tho' you shall find many of the same Notes scattered in my Lord Coke in Elsyng Hakewel Scobel and others yet I may adventure to say you shall no where meet them couched in so compendious and so useful a Method I have not only cull'd out of the before-mention'd and several other Authors what is proper and pertinent to this Design but I have gleaned from the Statutes Law-Books Reports and Histories whatsoever I met with in my inquisitive Re-searches beyond All that has been before placed in any Collection and which may be applicable to this Vndertaking All Members ought to be throughly skill'd in Parliamentary Affairs to know their own Laws and Customs their Powers and Priviledges that they may not at any time suffer Invasions to be made upon them by what plausible Pretences soever but as it is impossible for men of the most tenacious Faculties to keep all things constantly in their minds therefore this is to ease and refresh their Memories in case of any Forgetfulness and they may with a very little Trouble have always this in their Pockets which perhaps some may not be able without a great deal of Trouble to carry always in their Heads When he that is conversant in Study and Books cannot carry a Library about him he may easily recollect what is expedient for him from the Supplement of this Epitome Such as shall hereafter be promoted to that honourable Station of being Senators of the Kingdom will find it much more easie to receive short Information from this little Manual than to be obliged on every Occasion to consult the publick Records and turn over wearisome Volumes And they who do not expect Admission into a Parliament House will yet receive this as no unprofitable Diversion to observe and know the admirable method of Parliamentary Proceedings the Exactness and Decency of their Orders the Wisdom and Prudence of their Customs the Extent of their Powers and the Largeness of their Priviledges Wherefore without any Flattering or Arrogance to my self I shall make bold to tell you I am verily perswaded that what I have taken pains to collect from several Books and to digest into this small Compass for my own Convenience and Information will conduce to the general Satisfaction of all that read it which was one main Reason that induced me to publish it THE HEADS Of the several CHAPTERS Contained in this TREATISE CHAP. 1. THE Parliament Page 1 CHAP. 2. Power of Parliament Page 18 CHAP. 3. The House of Lords Page 41 CHAP. 4. Power of the House of Lords Page 53 CHAP. 5. House of Commons Page 61 CHAP. 6. Power of the House of Commons Page 66 CHAP. 7. Power of Parliament over their own Members Page 87 CHAP. 8. Elections of Members Page 104 CHAP. 9. Who may be Electors Page 113 CHAP. 10. Who may be Elected Page 115 CHAP. 11. Returns of Sheriffs and Amendments of Returns Page 125 CHAP. 12. Election of Speaker Page 130 CHAP. 13. Business of the Speaker Page 141 CHAP. 14. Orders to be observed in the House Page 148 CHAP. 15. Orders of the House Page 156 CHAP. 16. Passing of Bills Page 174. CHAP. 17. Concerning Committees Page 202 CHAP. 18. The Order and Power of Grand Committees Page 215 CHAP. 19. Concerning standing Committees Page 222 CHAP. 20. A Session of Parliament Page 229 CHAP. 21. The proper Laws and Customs of Parliament Page 235 CHAP. 22. Priviledge of Parliament Page 257 The Appendix Page 299 The NAMES of the AUTHORS quoted in this TREATISE ATkyns Sir Robert 's Argument of the Power and Jurisdiction of Parliament Arcana Parliamentaria Brook Brownlow Coke on Littleton Coke 's fourth Institute Coke 's Twelfth Report Crompton 's Jurisdiction c. Dyer Elsyng d'Ewes Sir Simond 's Journal Fortescue Hakewel Herbert 's Henry the Eighth Hollis Lord. Holling shead Hunt Hutton Kelwey Knyghton de Eventibus Angliae Leonard 's Reports Modus tenendi Parliamentum Moor 's Reports Nalson 's Collections Petyt 's Ancient Rights c. Petyt 's Miscellanea Parliamentaria Plowden Rushworth 's Collections Scobel Selden 's Judicature Smyth Sir Thomas Common-wealth of England Speed 's History Townsend 's Collections Turner 's Bankers Case Vaughan 's Reports CHAP. I. The Parliament IT is called Parliamentum Co sup Littleton 110. because every Member of that Court shou'd parler le ment speak his mind Mr. Lambard in his Archion maintains Sir R. Atkyns Argument c. p. 18. That the Parliament was used in the Saxons time and then consisted of the King Lords and Commons as in the Time of King Ina Ann. 712. Mr. Prinn says Mr. Prynn's Truth triumphing over Falshood Antiquity over Novelty fol. 69. Pttyt's Ancient Right c. p. 68. by all the ancient Precedents before the Conquest it is most apparent That all our pristine Synods and Councils were nought else but Parliaments That our Kings Nobles Senators Aldermen Wisemen Knights and Commons were usually present and voting in them as Members and Judges They had many Expressions and Phrases as Id. 98 99. Omnes Regni Nobiles Totius Regni Magnates Proceres Fideles Regni Vniversitas Regni Clerus Populus Communitas Regni Discretio totius Regni Generale Concilium Regni and many more varying in several Ages till at last they fixed on the word Parliamentum Vide many Records and Precedents touching this Matter in the Appendix to Petyt's Miscellanea Parliamentaria This Court is the highest Court of England Crompton's Juris p. 1. in which the Prince himself sits in Person and comes there at the Beginning of the Parliament and at the End and at any other Time when he pleaseth during the Parliament The Judges
not only by the Princes Pleasure Fortescue 40. a. but also by Assent of the whole Realm so that of Necessity they must procure the Wealth of the People and in no wise tend to their hindrance It cannot otherwise be thought Ibid. but that they are replenish'd with much Wit and Wisdom seeing they are ordain'd not by the Device of one man alone or of a hundred wise Counsellors only but of five hundred and odd Men that ought to be freely Elected by the People CHAP. II. Power of Parliament THE most High and Absolute Power of the Realm of England Sir Tho. Smith's Common-wealth l. 2. c. 2. p. 72. Arcana Parl. 1. consisteth in the Parliament For as in War where the King himself in person the Nobility the rest of the Gentility and the Yeomanry are is the Force and Power of England So in Peace and Consultation where the Prince is to give Life and the last and highest Commandment the Barony or Nobility for the higher the Knights Esquires Gentlemen and Commons for the lower part of the Commonwealth the Bishops for the Clergy be present to advertise consult and shew what is good and necessary for the Commonwealth and to consult together and upon mature deliberation every Bill or Law being thrice read and disputed in either House the other two parts first each a part and after the Prince himself in presence of both the Parties doth consent unto and alloweth that is Ibid. p. 73. the Prince's and whole Realm's Deed whereupon justly no man can complain but must accommodate himself to find it good and obey it That which is done by this Consent is called firm stable and sanctum and is taken for Law The Parliament abrogateth old Laws 2. Maketh new Sir Tho. Smith ibid. Arc. Parl. 2. Vide Crompt Jur. 3. 3. Giveth order for things past and for things hereafter to be followed 4. Changeth Right and Possessions of private Men. 5. Legittimateth Bastards 6. Establisheth Forms of Religion 7. Altereth Weights and Measures 8. Giveth Form of Succession to the Crown 9. Defineth of doubtful Rights whereof is no Law already made 10. Appointeth Subsidies Tallies Taxes and Impositions 11. Giveth most free Pardons and Absolutions 12. Restoreth in Blood and Name 13. As the highest Court condemneth or absolveth them who are put upon their Trial. And to be short 14. All that ever the People of Rome might do either Centuriatis Comitiis or Tributis the same may be done by the Parliament of England which representeth and hath the Power of the whole Realm both the Head and Body For every English-man is intended to be there present either in Person or by Procuration and Attorny of what preheminence state dignity or quality soever he be from the Prince be he King or Queen to the lowest Person of England And the Consent of the Parliament is taken to be every man's consent As for the Power of Parliaments over both the Statute and Common Law of this Realm Rastal's Statutes fol 546. 25 H. 8. c 21. you will be best informed of it from the memorable words of an Act of Parliament it self which are as followeth viz. Whereas this Realm recognizing no Superiour under God but only the King hath been and is free from Subjection to any Man's Laws but only to such as have been devised made and ordained within this Realm for the Wealth of the same or to such other as by Sufferance of the King and his Progenitors the People of this Realm have taken at their free Liberty by their own Consent to be used amongst them and have bound themselves by long Vse and Custom to the Observance of the same not as to the Observance of the Laws of any Foreign Prince Potentate or Prelate but as to the Custom and ancient Laws of this Realm originally established as Laws of the same by the said Sufferance Consents and Custom and none otherwise It standeth therefore with Natural Equity and Good Reason that all and every such Laws Humane made within this Realm by the said Sufferance Consents and Custom the King and the Lords Spiritual and Temporal and Commons representing the whole State of this Realm in the most High Court of Parliament have full Power and Authority not only to dispence but also to authorize some Elect person or persons to dispence with those and all other Human Laws of this Realm and with every one of them as the Quality of the persons and Matter shall require And also the said Laws and every of them to abrogate adnul amplifie or diminish as it shall be seen to the King and the Nobles and Commons of this Realm present in Parliament meet and convenient for the Wealth of this Realm The Power and Jurisdiction of the Parliament for making of Laws in proceeding by Bill 4 Inst 36. is so transcendent and absolute as it cannot be confined either for Causes or Persons within any Bounds Si Antiquitatem spectes est vetutissima si Dignitatem est honoratissima si Jurisdictionem est capacissima The whole Parliament which should best know its own Power affirms Speed's Hist f. 914. Rot. Parl. 1 R. 3. In Cotton's Abridgment f. 713 714. That the Court of Parliament is of such Authority and the People of this Land of such a Nature and Disposition as Experience teacheth that the Manifestation and Declaration of any Truth or Right made by the Three Estates of this Realm assembled in Parliament and by Authority of the same maketh before all other things most Faith and certain quieting of mens Minds and removeth the Occasion of Doubts Parliamentum omnia potest says the 4 Leon. 174 176. The Parliament is of an absolute and unlimited Power in things Temporal within this Nation Sir Rob. Atkyns's Argument c. 50. The Parliament hath the highest and most sacred Authority of any Court Ibid. it hath an absolute Power it is the highest Court in the Realm as is acknowledged by our most learned and gravest Writers and Historians A man gives Land to one Crompton 20. b. and to his Heirs Males in that Case his Heirs Females also inherit and this was adjudged in Parliament One of the fundamental and principal Ends of Parliaments was Petyt's Preface to Ancient Rights c. p. 41. for the Redress of Grievances and easing the Oppressions of the People And the Mirror of Justices says c. 1. p. 9. That Parliaments were instituted to hear and determine the Complaints of the wrongful Acts of the King the Queen and their Children and especially of those persons against whom the Subjects otherwise could not have common Justice The greater the Persons are Sir Rob. Atkyns Argument p. 45. if they are in the Rank of Subjects they must be subject to the King's Laws and they are the more proper for the Undertaking and Encounter of this High Court It will not be impar congressus King John had resign'd up the Crown of
Vide Sir Simon d'Ewes Jour 212. for publishing and discovering the Conferences of the House and writing a Book to the dishonour of the House was upon due Examination secundùm Legem Consuetudinem Parliamenti adjudged by the House of Commons to be committed to the Tower for six Months fined at Five hundred Marks and expelled the House 23 Apr. 1 Mariae Ibid. Call'd Monington by Scobel 113. Muncton struck William Johnson a Burgess of B. return'd into the Chancery of Record for which upon due Examination in the House of Commons it was resolved That secundum Legem Consuetudinem Parliamenti every man must take Notice of all the Members of the House returned of Record at his peril And the House adjudged Muncton to the Tower Injuries offer'd to the Members Scobel 113. and their Servants during the Session have been usually punish'd by the House upon Complaint 29 Febr. 1575. Ibid. Vide Sir Simon d'Ewes Jour 251. Col. 2. One Williams for assaulting a Burgess of this House was upon complaint sent for by the Serjeant and brought to the Bar and committed to the Serjeant's Ward 28 Nov. 1601. Ibid. Complaint being made by Mr. Fleetwood a Member of the House that one Holland a Scrivener and one Brooks his Servant had evil entreated and beaten the Servant of the said Mr. Fleetwood in his Presence they were both sent for by the Serjeant and brought to the Bar and for the said Offence committed for five days to the Serjeant 12 Febr. 18. Id. 114. Jac. 1. Mr. Lovel a Member of the House informed That one Darryel threatned his Person that for a Speech spoken by him in the House he shou'd be sent to the Tower during the Parliament or presently after Darryel was sent for by the Serjeant to answer it to the House and upon Testimony of it he was committed to the Serjeant till Thursday following and then to acknowledge his Fault or to be committed to the Tower 16 Junij 1604. Ibid. Complaint being made of one Thomas Rogers a Currier dwelling in Coleman-street for abusing Sir John Savil in slanderous and unseemly Terms upon his Proceedings at a Committee in the Bill touching Tanners c. he was sent for by the Serjeant at Arms to the Bar to Answer his Offence Sir William Aston Sheriff of London Rush Coll. 656. Vid. Petyt's Miscell Parl. 108. Acton's Case being Examined before the Committee concerning some Matters about the Customs and not giving that clear Answer which he ought and as the House conceived he might have done was therefore committed to the Tower of London And a Question was made in the House at the Time Whether the House had at any Time before committed a Sheriff of London to Prison To which Mr. Selden made Answer That he could not call to mind a Precedent of sending one Sheriff of London to Prison but he well remembred a Precedent of sending both the Sheriffs of London to the Tower and instanced the Case One Trussel being in Execution in one of the Compters in London Towns Coll. 20. Vide Sir Simon d'Ewes Jour 438. Col. 1. was Order'd to be brought before the Committee with his Keeper without Danger of an Escape in the Execution 4 Novemb. 1640. Scobel 16. Upon a Report from the Committee for Priviledges That several Indentures were returned for Burgesses for the Borough of Bossinny in the County of Cornwal the one by the Mayor of the Town the other promiscuously The Committee were of Opinion upon view of the bare Indenture That Sir Charles Harbord who was return'd by the Mayor was well return'd but the House declar'd he shou'd not sit till the Election were decided 44 Eliz. 1601. Towns Coll. 297. The Course hath been if the House hath been desirous to see any Record the Speaker shou'd send a Warrant to the Lord Keeper to grant a Certiorari to have the Record brought into the House Decemb. 1641. Ordered 2 Nalson 753. That Mr. Speaker do write his Letters to the Mayor of Berwick enjoyning him to require such Papists and suspected Persons as reside there or make their constant Repair thither forthwith to depart the Town and to tender the Oaths of Supremacy and Allegiance to such as shall refuse and to proceed against them according to Law and to require him that a Guard be kept at the several Gates and that the Arms of that Place be in readiness The like to the Mayor of Newcastle and of Hull The Commons upon Imprisonment of their Members Rush Coll. 358. and the Offence taken by the King resolved to proceed in no other Business till they were righted in their Liberties Dec. 1641. 2 Nalson 732. Mr. Long a Justice of the Peace sent to the Tower for setting a Guard without Consent of the Parliament A Knight 4 Inst 12. Citizen or Burgess of the House of Commons cannot by any Means make a Proxy because he is elected and trusted by Multitudes of People If the Commons accuse a Commoner of Misdemeanors Selden 's Jud. 101. in such a State of Liberty or Restraint as he is in when the Commons complain of him in such he is to answer Sir Francis Michel Seld. Jud. Ibid. and Sir John Bennet were both committed by the Commons before their Complaint to the Lords and so they answered as Prisoners but that in a sort may be call'd Judicium parium suorum If the Commons impeach any man they are in loco proprio Id. 124. and there no Jury ought to be only Witnesses are to be examined in their Presence or they to have Copies thereof and the Judgment not to be given until the Commons demand it The Presence of the Commons is necessary at the Parties Answer Id. 158. and Judgment in Cases Capital Now one Reason for the King's Assent and the Commons Presence in such Judgments may be this Both King and People are to be satisfied for the Death of the Subject therefore all Trials for Life and Death are publick in the full Assembly of the Court and how can it be said in full Parliament when the Commons one of the States are absent Tho' the Commons are not present when the Lords do consider of the Delinquents Answer Id. 159. and the Proofs and do determine of their Judgment yet at their Return to their own Assembly they consider among themselves if the Proceedings were legal and may come again and shew it and require a Re-hearing of the Cause as they did at the Judgment of the Duke of Clarence in 18 Ed. 3. In Judgment on Misdemeanors Id. 162. the Presence of the Commons is not necessary unless they Impeach a Delinquent prout 50 E. 3. and then they are present at all the Answers of those whom they Impeach and demanded Judgment When the Lords had determin'd one part of the Complaint of the Commons against William Ellis touching the wrong done to certain Scottish
Benson a Member of the House Id. 596. having granted many Protections for Money taking for some sixteen seventeen forty shillings and twenty for ten shillings a piece Resolved upon the Question That Mr. Hugh Benson is unworthy and unfit to be a Member of this House and shall sit no longer as a Member of this House That he be forthwith sent for as a Delinquent by the Serjeant at Arms attending on this House Mr. Jervase Hollis expell'd the House for a Speech made with great strength of Reason and Courage Id. 710. but more Heat than the Times would bear was restored to his Place to sit as a Member of the House of Commons Sir William Widdrington and Sir Herbert Price sent to the Tower for bringing in Candles against the Desire of the House Id 272. 23 Eliz. 1580. Sir Simon d'Ewes Jour 309. Col. 2. Order'd and Resolved by the House That every Knight for the Shire that hath been absent this whole Session of Parliament without Excuse allowed by this House shall have a Fine of Twenty pounds set upon him to her Majesties Vse and upon every Citizen or Burgess for the like Ten pounds 1 Jac. 1. 1603. Petyt's Miscell Parl. 147. Mr. Lawrence Hide pretending Business of his Clients c. made known to the House that he would go out of Town and so took his leave in open Audience without the Assent or Leave of this House which was taxed and Mr. Speaker warranted to write to him It was also moved and resolved Id. 149. That Mr Speaker shou'd write another Letter to other Lawyers being gone down in the same Circuit where Mr. Lawrence Hide was advising them to attend it CHAP. VIII Concerning Elections of Members ALL Persons and Commonalties who shall be Summon'd to the Parliament 5 R. 2. St. 2. c 4. shall come as hath been accustomed of old time and he that cometh not having no reasonable Excuse shall be amerced and otherwise punish'd The King sendeth Writs to the Sheriffs of every Shire Arc. Parl. 4 Vide the Form of the Writ Sir Simon d'Ewes Jour 37. to admonish the whole Shire to choose two Knights of the Parliament in the Name of the Shire to hear and reason and to give their Advice and Consult in the Name of the Shire and to be present at the day At every County Hakewel 47. Vid. Crompton's Juris 3. after the Delivery of the Parliament-Writ to the Sheriffs Proclamation shall be made in the full County of the Day and Place of the Parliament and that all Men shall attend for the Election of the Knights for the same County for the Parliament Where the Parliament Writ speaks de qualibet Civitate Comitatûs illius Arc Parl. 22 Vid. Cromp. 3. this intended where the City is not a County in it self If it be the Writ shall be directed to them c. as it is to Sheriffs of other Countries 28 Eliz. 1586. Resolved That the House of Commons are the only competent Judges concerning Elections Sir Simon d'Ewes Jour 396 397. which are duly made which not 18 Jac. 1. Petyt's Miscell Parl. 111. The Mayor of Winchelsey for mis-behaving himself at the Election of Parliament-men for their Town and making a false Return ordered to be committed to the Serjeant and to make a Submission at the Bar and an Acknowledgment in the Town before the new Election 20 Jac. 1. Id. 112. The Mayor of Arundel for mis-behaving himself in the Election by putting the Town to a great deal of Charges not giving a due and general Warning and packing a number of Electors ordered to be sent for and adjudged to pay the Charge to be set down by three of the Members Likewise to every City and Town Arc. Parl. 4. Smith 's Common-wealth 76. which of ancient Time hath been wont to find Burgesses of the Parliament so to make Election that they might be present there at the first day of the Parliament In 7 Hen. 4. 4 Inst 10. 2 Inst 169. it is enacted That Elections shou'd be freely and indifferently made notwithstanding any Prayer or Commandment to the contrary sine Praece without any Prayer or Gift and sine Praecepto without Commandment of the King by Writ or otherwise or of any other The King 4 Inst 4. de advisamento Concilii resolving to have a Parliament doth out of the Court of Chancery send out Writs of Summons at the least Forty days before the Parliament begin The third Estate is the Commons of the Realm 4 Inst 1. Crompton's Juris 2 b. whereof there be Knights of the Shires or Counties Citizens of Cities and Burgesses of Boroughs All which are respectively elected by the Shires or Counties Cities and Boroughs by Force of the King 's Writ ex debito Justitiae and none of them ought to be omitted These Represent all the Commons of the whole Realm Ibid. are trusted for them and are in Number at this Time 493. Now above 500. Whosoever is not a Lord of Parliament Id. 2. and of the Lord's House is of the House of Commons either in Person or by Representation partly coagmentativè and partly representativè Every Member of the House being a Counseller Id. 3. shou'd have three Properties First to be without Malice or Envy Secondly to be constant and inflexible Thirdly to be of ripe and perfect memory as appeareth in a Parliament Roll Rot. Parl. 3 H. 6. n. 3. The Knights of the Shire are chosen by all the Gentlemen and Teoman i. e. Freeholders of the Shire Arc. Parl. 5. Smyth 's Common-wealth 77. present at the Day assign'd for the Election The Voice of any absent can be counted for none Concerning the Writs for Summoning the Knights and Burgesses and the Return of the Sheriff Vide Crompton's Juris 1 2. Every English-man is intended to be there present Arc. Parl. 3. either in Person or by Procuration and Attorny and the Consent of the Parliament is taken to be every mans Consent These meeting at one Day Id. 10. Smyth 's Common-wealth 77. the two have most of their Voices are chosen Knights of the Shire for that Parliament Likewise by the Plurality of the Voices of the Citizens and Burgesses the Burgesses are elected The Election ought to be in full County 4 Inst 48. between Eight and Nine says the Statute of 23 Hen. 6. c. 15. No Election can be made of any Knight of the Shire but between Eight and Eleven of the Clock in the Forenoon says the Lord Coke But if the Election be begun within the Time and cannot be determined within those hours the Election may be made after Any Election or Voices given Id. 49. before the Precept be read and published are void and of no Force for the same Electors after the Precept read and published may make a new Election and alter their Voices Secundùm Legem Consuetudinem Parliamenti For
the Election of the Knights Id. 48. if the Party or Freeholders demand the Poll the Sheriff cannot deny the Scrutiny for he cannot discern who be Freeholders by the view and tho' the Party would wave the Poll yet the Sheriff must proceed in the Scrutiny The Knights shall be returned into Chancery by Indenture seal'd betwixt the Sheriff and the Choosers of Knights for the Parliament St. 8 H. 6. c. 7. 7 H. 4. c. 1. 23 H. 6. c. 15. Vid Crompton's Juris 3. 2 Nalson 870. Jan. 1641. In the Case of Mr. Downs return'd a Burgess for Arundel Order'd That he be presently sworn and admitted as a Member into the House until such Time as the Election be determin'd A Burgess elected for two several Boroughs may choose for which he will serve Sir Simon d'Ewes Jour 430 622. passim Petyt 's Miscel Parliament 112 113. 21 Jac. 1. Edward Ingry Under-sheriff of Cambridgeshire for refusing the Poll declaring that Sir Thomas Steward promised to defend him against Sir John Cutts was brought to the Bar and kneeling upon his Knees adjudg'd to be committed to the Serjeant's Custody and to make a Submission at the Bar and at the next Quarter-Sessions and to acknowledge his Faults 3 Car. 1. Id. 113. to 120. Thomson Sheriff of York for his hasty and precipitate Judgment of an Election and denying the Poll being requir'd and Alderman Henlow for advising and abetting the same adjudged to stand committed to the Serjeant during Pleasure to acknowledge their Offences at the Bar to pay all due Fees to defray the Charge of Witnesses to be assessed by four of the Committee to acknowledge their Faults on their Knees at the Bar and read a Submission After the Precept of the Sheriff directed to the City or Berough for making of Election Id. 49. there ought secundùm Legem Consuetudinem Parliamenti to be given a convenient Time for the Day of Election and sufficient Warning given to the Citizens and Burgesses that have Voices that they may be present otherwise the Election is not good unless such as have Voices do take Notice of themselves and be present at the Election Hobart 15. Dungannon 's Case in Ireland When there is a Corporation made by Charter and by the same an Ordinance that the Provost and Burgesses only shall choose c. The Law shall vest this Priviledge in the whole Corporation in point of Interest tho' the Execution of it be committed to some Persons Members of the same Corporation The King cannot grant a Charter of Exemption to any man 4 Inst 49. to be freed from Election of Knight Citizen or Burgess of Parliament as he may do of some inferior Office or Places because the Election of them ought to be free and his Attendance is for the Service of the whole Realm and for the Benefit of the King and his People and the whole Common-wealth hath an Interest therein 18 Eliz. 1575. Sir Simon d'Ewes 244. Col. 2. Vide contra Sir Simon d'Ewes Jour 281 282. Resolved That any Person being a Member of the House and being either in Service of Ambassage or else in Execution or visited with Sickness shall not in any wise be amoved from their Place in this House nor any other to be during such Time of Service Execution or Sickness elected CHAP. IX Who may be Electors THE Choosers of the Knights for the Parliament ought to be only of such Persons as are resiant and dwelling within the said Shire St. 1 H. 50. 1. 8 H. 6. c. 7. 10 H. 6. c. 2. No Person shall be a Chooser of the Knights for the Parliament St. 8 H. 6. c. 7. 33 H 8. c. 1. in Ireland except he hath Freehold Lands or Tenements within the same County to the value of Forty shillings per Annum at the least above all Charges The Sheriff hath Power given him by the said Statute to examine upon Oath every such Chooser St. 8 H. 6. c. 7. how much he may expend by the year Crompt Juris 3. if he doubt the value of it In many Cases Multitudes are bound by Acts of Parliament 4 Inst 4 5. which are not Parties to the Elections of Knights Citizens and Burgesses as all they that have no Freehold or have Freehold in ancient Demesne and all Women having Freehold or no Freehold and Men within the Age of One and twenty years c. Every Inhabitant choosing or electing in any other manner than is prescribed by the Statute to forfeit an hundred shillings St. 33 H 8. c. 1. Ireland half to the King and half to him that will sue for it If any man keeps a Houshold in one County Arc. Parl. 25. and remains in Service with another Family in another County yet he may be at the choosing of Knights of the Shire where he keeps his Family Crompton 's Juris 3. b. for it shall be said in Law a Dwelling in either of those Counties St. 23 H. 6. c. 15. Vid. Cromptons Jur. 3. b. 4 a. If the Mayor and Bayliffs or other Officer where no Mayor is shall return other than those which be chosen by the Citizens and Burgesses of the Cities or Boroughs where such Elections be shall incur and forfeit to the King Forty pounds and moreover shall forfeit to every person hereafter chosen Citizen or Burgess to come to Parliament and not by the same Mayor or Bayliff c. return'd or to any other Person that will sue for it Forty pounds CHAP. X. Who may be Elected 5 Eliz. c. 1. NO Knight Citizen 4 Inst 48. Sir Simon d'Ewes Jour 39 40. or Burgess can sit in Parliament before he hath taken the Oath of Supremacy and since the 7 Jac. 1. the Oath of Allegiance Because the words of the Writ for Election of Knights 4 Inst 10. c. were duos Milites gladiis cinctos c. it required an Act of Parliament that notable Esquires might be eligible Therefore the Statute says St. 23 H. 6. c. 15. The Knights of the Shires for the Parliament must be notable Knights or such Esquires or Gentlemen born of the same County as be able to be Knights Any man may be chosen Knight St. 18 Ed. 4. c. 2. in Ireland Citizen or Burgess tho' he be not dwelling within the same Every Knight St. 33 H. 8. c. 1. in Ireland Citizen and Burgess shall be resiant and dwelling within the Counties Cities and Towns Every Knight Citizen or Burgess taking it upon him and not chosen in the manner prescribed by the Act of Parliament to forfeit an hundred pounds Si home n'esteant Inhabitant Moor fo 551 n. 741. ne free del un Borough poit Eslier s'il voit seruer à lour Election ou nemy pur le Borough If a man be not an Inhabitant nor free of a Borough he may choose if he will serve at their Election or not
624. Col. 2. Sheriff of Rutland returned himself Knight and adjudged a void Return and a Warrant ordered for a new Election For said Serjeant Harris we know in Law that a man cannot make an Indenture to himself no more can he here between himself and the County for there are required two Persons Yet Sir Edward Hobby said That the House might well receive him and vouched a Precedent when the Bayliffs of Southwark returned themselves Burgesses and were received The Fee for the Knight of any County is 4 Inst 46. four shillings per diem and every Citizen or Burgess is to have two shillings per diem Where one Person is chosen and returned to serve in several Places Scobel 18. Vide Sir S. d'Ewes Jour passim it is in his Election to make his Choice in the House in his own Person for what Place he will serve and wave the other Election so as a Writ may issue for a new Election that the number may be full CHAP. XI Returns of Sheriffs c. And Amendments of Returns COncerning the Punishment of Sheriffs for their Negligence in returning of Writs 5 R. 2. Stat. 2. c. 4. or for leaving out of their Returns any City or Borough which ought to send Citizens and Burgesses See the Stat. Every Sheriff St. 8 H. 6. c. 7. 23 H. 6. c. 15. Vid. Cromton's Juris 3. Hakewel 48. who doth not make true Return of Elections of Knights Citizens and Burgesses to come to Parliament shall forfeit an hundred pounds to the King and an hundred pounds to the Party injured and be imprison'd for a Year without Bail or Mainprize And every Mayor or Magistrate of a Town so oftending shall pay Forty pounds to the King and Forty pounds to the Party This Action to be within Three months after the Parliament commenced or by any other man who will If he so do not Hakewel 49. Vid. Crompton's Juris 3. b. and prosecute his Suit with Effect and without Fraud any other man who will may have the said Suit for the said hundred pounds as the Knight had and Costs of Suit also shall be awarded to the said Knight or any other who will sue in his behalf The Sheriff shall make a good Return of his Writ Hakew. 51. and of every Return of the Mayor and Bayliff or Bayliffs where no Mayor is to him made The Burgesses of Leskard in Cornwal being elected Towns Coll. 63. the Town refused to deliver up their Indenture to the Sheriff but the Party elected made his Indenture and deliver'd it to the Clerk of the Crown who filed it with the rest of the Indentures returned by the Sheriff the Sheriff having endorsed it upon his Writ but this Indenture was never executed by the Sheriff nor returned and yet this Return was held by the Committees to be good Jan. 1641. Ordered 2 Nalson 870. That the High-Sheriff of the County of Sussex who has return'd two Indentures for the Town of Arundel shall be summon'd to appear here at the Bar to amend his Return 35 Eliz. 1592. Sir Simon d'Ewes Jour 490. Col. 2. It was said by the Speaker No Return can be amended in this House For the Writ and the Return are in Chancery and must be amended there Every Sheriff or other Officer St. 33 H. 8. c. 1. in Ireland returning any Knight Citizen or Burgess chosen in any other manner than is prescribed in the Statute to forfeit an hundred pounds If one be duly elected Knight 4 Inst 49. It cites in the Margin Rot. Parl. 5 H. 4. n. 38. Citizen or Burgess and the Sheriff return another the Return must be reformed and amended by the Sheriff and he that is duly elected must be inserted for the Election in these Cases is the Foundation and not the Return 18 Jac. 1. Scobel 115. The Sheriff of Leicestershire having returned Sir Thomas Beaumont upon Report from the Committee for Elections that Sir George Hastings was duly chosen the Sheriff was ordered to return Sir George Hastings to the Clerk of the Crown and he to accept it and file it 21 Jac. 1. Ibid. Upon Report from the Committee of Priviledges That in the Election of Mr. John Maynard for Chippingham John Maynard was chosen but by a Mistake Charles was afterward written in stead of John It was Resolved The Return shou'd be amended without a new Writ and that the Bayliff shou'd do it and not the Clerk of the Crown and that it shou'd be sent down to the Bayliff in the Country and he to Return John Maynard Esq the first Burgess 1 Febr. 1640. It being Resolved Ibid. That the Election of Mr. Erle for one of the Burgesses of Wareham is a good Election Ordered That the Officer who was the Officer when the Return was made or his Deputy or the Electors shou'd amend the Return But the next day it was Ordered That Edward Harbin the late Mayor of Wareham 's Deputy shou'd come to the Bar of the House and amend the Return 20 Febr. 1640. Id. 116. The Bayliff of Midhurst in Sussex came to the Bar being sent for by Order of the House and amended one of the Indentures of Return of Burgesses for that Town and the other was taken off the File If a Sheriff shall return one for a Knight of the Shire Sir Simon d'Ewes Journ 283. Col. 2. who was unduly or not at all elected yet he that is so return'd remains a Member of the House till his Election be declared void CHAP. XII Election of the Speaker THE Speaker is he that doth prefer and commend the Bills exhibited into the Parliament Arc. Parl. 3. Smyth's Common-wealth 75. and is the Mouth of the Parliament It is true 4 Inst 8. Smyth's Common-wealth 75. the Commons are to choose their Speaker but seeing that after their Choice the King may refuse him for avoiding of expense of Time and Contestation the Use is as in the Conje d'Eslier of a Bishop that the King doth name a difereet and learned Man whom the Commons elect But without their Election no Speaker can be appointed for them 4 Inst 8. because he is their Mouth and trusted by them and so necessary as the House of Commons cannot sit without him And therefore a grievous Sickness is a good Cause to remove the Speaker and choose another Id. 8. So in 1 Hen. 4. Sir John Cheyny discharged and so William Sturton So in 15 Hen. 6. Sir John Tyrrel removed The first Day each Member is called by his Name Modus tenend Parl. 35. every one answering for what Place he serveth that done they are willed to choose their Speaker who tho' nominated by the King's Majesty is to be a Member of that House Their Election being made he is presented by them to the King sitting in Parliament 35. So Sir Thomas Gargrave 1 Eliz. So Christopher Wray 13 Eliz. So Robert Bell
the Rights and Priviledges of Parliament sit there any longer without a full Vindication of so high a Breach of Priviledge and a sufficient Guard wherein they might confide The Lords cannot proceed against a Commoner Selden 's Jud. p. 84. but upon a Complaint of the Commons APPENDIX The Report of a Case happening in Parliament in the first year of K. James the First which was the Case of Sir Francis Goodwyn and Sir John Fortescue for the Knights Place in Parliament for the County of Bucks Translated out of the French IN this Case after that Sir Francis Goodwyn was elected Knight with one Sir William Fleetwood for the said County which Election was freely made for him in the County and Sir John Fortescue refused notwithstanding that the Gentlemen of the best Rank put him up The said Sir John Fortescue complained to the King and Council Table he being one of them to wit one of the Privy Council that he had been injuriously dealt with in that Election which does not appear to be true But to exclude Sir Francis Goodwyn from being one of the Parliament it was objected against him that he was Outlawed in Debt which was true scilicet He was Outlawed for 60 l. 31th of Queen Elizabeth at the Suit of one Johnson which Debt was paid and also the 39th of Eliz. at the Suit of one Hacker for 16 l. which Debt was also paid and that notwithstanding the King by the Advice of his Councel at Law and by the Advice of his Judges took Cognisance of these Outlawries and directed another Writ to the Sheriff of the said County to elect another Knight in the place of the said Sir Francis Goodwyn which Writ bore Date before the Return of the former And this Writ recites That because the said Sir Francis was Outlawed prout Domino Regi constabat de Recordo and for other good Considerations which were well cognisant to the King and because he was Inidonious for the Business of the Parliament therefore the King commanded him to elect one other Knight in his room which Writ was executed accordingly and Sir John Fortescue elected And at the day to wit the first day of the Parliament both Writs were return'd the first with the Indenture sealed between the Sheriff and the Freeholders of Bucks in which Sir Francis Goodwyn and Sir William Fleetwood were elected Knights for the Parliament and also the Sheriff returned upon the Dorse of the Writ that the said Sir Francis was Outlawed in two several Outlawries and therefore was not a meet Person to be a Member of the Parliament House The second Writ was returned with an Indenture only in which it was recited That Sir John Fortescue by reason of the second Writ was elected Knight Both these Returns were brought the third sitting of the Parliament to the Parliament House by Sir George Copping being Clerk of the Crown And after that the Writs and Returns of them were read it was debated in Parliament Whether Sir Francis Goodwyn should be received as Knight for the Parliament or Sir John Fortescue And the Court of Parliament after a long Debate thereupon gave Judgment That Sir Francis Goodwyn should be received and their Reasons were these First Because they took the Law to be that an Outlawry in Personal Actions was no Cause to Disable any Person from being a Member of Parliament and it was said That this was Ruled in Parliament 35th of Queen Elizabeth in the Parliament House in a Case for one Fitz-Herbert Another President was 39 H. 6. Secondly The Pardons of the 39th of Queen Eliz. and 43 Eliz. had pardoned those Outlawries and therefore as they said he was a Man able against all the World but against the Party Creditor and against him he was not But in this Case the Parties were paid Also Thirdly It was said that Sir Francis Goodwyn was not Outlawed because no Proclamation was issued forth to the County of Bucks where he was Commorant and Resiant And therefore the Outlawry being in the Hustings in London and Sir Francis Goodwyn being Commoran in Bucks the Outlawry no Proclamation issuing to the County of Buks was void by the Statute of the 31th of the Queen which in such Cases makes the Outlawries void Fourthly It was said that the Outlawries were 1. Against Francis Goodwyn Esq 2. Against Francis Goodwyn Gent. and 3. The Return was of Francis Goodwyn Kt. Et quomodo constat that those Outlawries were against the said Sir Francis Goodwyn for these Reasons also they Resolved that the Outlawries were not any matter against Sir Francis Goodwyn to disenable him to be a Knight for the County of Bucks Fifthly It was said That by the Statute of 7 H. 4. which prescribes the manner of the Election of Knights and Burgesses it is Enacted That the Election shall be by Indenture between the Sheriff and the Freeholders c. that the Indenture shall be the Return of the Sheriff It was also said That the Presidents do warrant this Judgment videlicet 1. One President of the 39 H. 6. where Person Outlawed was adjudged a sufficient Member of Parliament Another 1 Eliz. and ot that time one Gargrave who was a man learned in the Law was Speaker and of the Queens Council 2. Another was the Case of one Fludd in the 23th of the Queen who being Outlaived was â—â—â—udged that he should be Priviledged by Parliament and at that time the Lord Chief Justice Popham was Speaer And 3. In the 35th of Elizabeth there were three Presidents scil one of Fitzherbert another of one Killegrew being Outlawed in 52 Outlawries and the third of Sir Walter Harecourt being outlawed in eighteen Outlawries But after this Sentence and Judgment of the Parliament the King's Highness was displeased with it because the second Writ emanavit by his Assent and by the Advice of his Council And therefore it was moved to the Judges in the Vpper House Whether a Person Outlawed could be a Member of Parliament who gave their Opinions that he could not And they all except Williams agreed that the Pardon without a Scire facias did not help him but that he was Outlawed to that purpose as if no Pardon had been granted And upon this the Lords sent to the Lower House Desiring a Conference with them concerning this Matter which Conference the Lower House after some deliberation denied for these Reasons 1. Because they had given their Judgment before and therefore they could not have Conference de re Judicata as in like manner they did 27 Queen Eliz. upon a Bill which came from the Lords and was rejected by Sentence upon the first Reading Sir Walter Mildmay being then of the Privy Council and of the House 2. Because they ought not to give any Accompt of their Actions to any other Person but to the King himself This Answer the Lords did ill resent and therefore refused Conference in other Matters concerning Wards and Respite of Homages and